Legally Speaking with Bob Mionske – The Birdman letters

Bob, After reading your most recent “Legally Speaking with Bob Mionske – Mo’ Birdman Fo’ Y’all” and the earlier “birdman case,” it occurs to me that, as a daily bike commuter and one who has been buzzed many times (intentionally and not), I spend a lot of time cussing and looking at the drivers through the back window. Those who simply aren’t paying attention never look back, never look in the mirror (most drivers rarely look in their rear-views anyway). Those that do look back do so for a specific reason; in this case, to see what sort of reaction they’re going to get. Essentially, they are trying to provoke me into some sort of action: flipping the bird, perhaps, that will give them an excuse to feel provoked into further action (stopping the vehicle and approaching); or just whether I got run into the ditch or not.

For me, the first litmus test is whether the driver looks. I never bother to react (outside of cussing), but I always check to see whether they do. If they check, they knew what they were doing, and it was an assault. In the birdman accounts, the fact that the drivers saw the birds tells me that they were looking for them, and they were not disappointed. They were provoking the reaction so they could justify an escalated response.

Bill Strickland wrote about how he approaches angry drivers in his recent blog post Confronting the Driver. In everyday interaction I prefer this method of response, as it usually diffuses a bad situation; but mostly, I don’t respond, because there isn’t time. I’m generally in downtown Portland, Maine, and busy regaining my balance and watching for parked car doors and gaping potholes. All I can usually muster is a disgusted shake of the head, but privately, I dream of mounting a paint-ball gun on my handlebar.

I don’t think the riders in either story did anything unexpected or uncalled for… the bird is really the only universally recognized symbol of disdain that can be achieved with one hand. My money is on the fact that these drivers have not only received the bird from plenty of auto drivers, but given it in equal measure.

Litmus test No. 2: do they block the path of those auto drivers, get out, wave guns, and threaten lives? I’m guessing they don’t, as a rule (I always leave room for error when dealing with anger management issues). The fact that they are willing (anxious?) to behave this way with defenseless, scantily-clad skinny people simply tells me that they are eager to prove themselves in an atmosphere they feel they can control… typical bully behavior.

It’s hard to pick an appropriate response for someone itching for a fight… it really depends on how much fight you have, I guess. No matter what, they have the bigger weapon (the car) and less judgment. But I have a hard time finding fault with any rider who is moved to respond to someone who has chosen to risk another’s life for the sake of some chest beating. B.N.,Portland, Maine

Dear B.N., I think you’ve hit the nail square on the head with your observations about whether the driver looks for a reaction or not. In the original Birdman column, the driver buzzed the cyclists, and then screeched to a halt when “the Birdman” flipped the bird. He was obviously looking in his mirror to have seen the gesture in the first place. And in this most recent Birdman column, the driver also buzzed the cyclists, and also screeched to a halt when “Another Birdman” flipped the bird. Again, he was obviously looking in his mirror after he had buzzed them in order to have seen the gesture. One implication of this is that the drivers cannot claim that they “didn’t see” the cyclists as they buzzed them. Because they were watching the cyclists closely enough to see the response, that fact might be useful as evidence that the buzzing was intentional, and therefore, an assault.

I think you’ve also scored a direct hit with your observation that these guys are exhibiting classic bully behavior. One doesn’t imagine, for example, that the guy who assaulted the Lees-McRae team would also use his vehicle to assault the local policeman who took the complaint, waving his gun and threatening to “lay y’all out right here.” Police officers, after all, also carry guns.

It might come as some surprise to some of these bullies to learn that some cyclists also carry guns. Of course, when your life is being threatened by a gun-wielding bully, you are entitled to respond with force sufficient to repel the threat, and that may mean having your own firearm at hand. But are armed roadside standoffs—or worse—really the best way to handle these cowards?

Bill Strickland takes a different approach, as discussed in his blog — one that relies on resisting the urge to retaliate in anger, and instead, to attempt to establish a human connection between the two antagonists. From the sound of it, he has more successes than failures, but even Bill admits that he’s expecting a black eye — or worse — when he confronts drivers to discuss the dispute between them. Still, it’s a laudable effort at attempting to defuse some of the anger that’s out there.

But what can a cyclist do if confronted by one of these bullying drivers, and the cyclist isn’t inclined to chase a bullying driver down for a heart-to heart? One reader of Bill Strickland’s blog has successfully scared off road ragers by pretending to take a photo of the offending vehicle’s license plate with his cell phone. Of course, you don’t have to pretend—you can actually take the photo, and perhaps even use it as evidence to prosecute the driver, although you will likely need corroborating witnesses before the police will take action.

Another technique that many cyclists report great success—and a great sense of satisfaction—with is giving a friendly wave to the bully. The reason this works so well is because it’s the opposite of the response the bully is looking for when he buzzes you and then looks in his mirror for the inevitable “bird.” As you pointed out, these bullies are hoping for a response from you, so they can justify escalating their bullying—and when you give them a friendly smile and a wave, you’ve taken from them the provocation they were hoping to elicit. It frustrates the bully, and that’s why so many experienced cyclists feel a sense of satisfaction in smiling and giving a friendly wave. Bob

Bob, Just wanted to pass on to the Lees-McRae crew a HUGE “Thanks!” One less gun-toting maniac on the roads… I ride the roads out there all the time, and occasionally have the beautiful scenery interrupted by an unfortunately uneducated individual with a pick-up and a bad attitude. Like most cyclists I’m sure, I’ve often dreamt of getting the chance to prosecute some of the redneck outlaws that come way too close on country roads. Good for you guys. See you on the road! T.W.,Nashville, Tennessee

Dear T.W., Consider it passed on, and hopefully, they’ve helped set a good example for the rest of us to follow in getting these guys off the road. Bob

Hey Bob, I sent you the original Birdman letter. You sure did get a lot of mileage out of it. I’m glad. There has been some good reading associated with that “thread.” Keep up the good work. If you get time, check out the continued adventures of the Birdman and his compatriots at Tuesday Grimpeur [hyperlink to http://tuesdaygrimpeur.blogspot.com/ ]. The Birman appears most recently in “A King is Crowned.” C.C.

Hi C.C., Thanks for the link, and of course, thanks for the original “Birdman” email. The “birdman” was one of those cycling stories that seemed to strike a chord in everyone, because we’ve all been there, and we’ve probably all wondered after the fact if there’s a better response to these bullies than our fingers immediately flying upwards in a Strangelovian response. Stay tuned, because there are still a few more letters out there in response to the original Birdman column.

Good riding out there on the roads everybody, Bob

(Research and drafting provided by Rick Bernardi, J.D.)

Finally, I’d like to extend my thanks to everybody who has contacted me to request my appearance at their event. I will be speaking extensively on “Bicycling and the Law” this year, and will make plans to appear before any club, bike shop, or other engagement that is interested in hosting me. If you would like me to appear to speak at your event or shop, or to your club or group, please drop me a line at bookbob2speak@gmail.com. I’m looking forward to meeting as many of my readers as possible in the coming year.

Now read the fine print:

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.

If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

Important notice:The information provided in the “Legally speaking” column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.